Footnote 17 in Exxon Decision Gets Dissed and Dissected

A footnote by Justice David H. Souter in the U.S. Supreme Court’s ruling overturning $2.5 billion in punitive damages in the Exxon Valdez oil spill is prompting a closer look at the use of empirical research by the courts.

Souter wrote of “the stark unpredictability of punitive awards,” but said his conclusion wasn’t based on Exxon-funded legal studies. “Because this research was funded in part by Exxon, we decline to rely on it,” footnote 17 declares.

The footnote has attracted so much attention it was the subject of a keynote speech at a Cornell legal conference, the New York Times reports. Critics say Souter may have said he wasn’t relying on the studies, but he adopted their approach. And some say Souter didn’t properly interpret a study he cited with approval.

One of the critics appears to be Cornell law professor Theodore Eisenberg, the author of the study cited by Souter. Eisenberg’s colleague, Cornell law professor Jeffrey Rachlinski, told the Times that Eisenberg’s study shows “punitive damages are pretty orderly,” yet Souter did not seem to think any studies had proven that point.

The Times asked Eisenberg for his reaction and summarized his response this way: “Professor Eisenberg struggled to stay respectful about the court’s approach to his work, saying he had been flattered to be cited at all. He finally settled on this phrase: ‘I believe the court went seriously astray’ in concluding that his work supported a reduced award.”

Another professor who spoke to the Times had accepted Exxon money to conduct a punitives study, but the results weren’t before the court. Sociology professor William Freudenburg received around $10,000 from the company, but Exxon pulled support for the study after his preliminary findings concluded that corporate transparency encourages responsible corporate behavior, the newspaper says.

“The legal system and the scientific method,” Freudenburg told the newspaper, “coexist in a way that is really hard on truth.”